New Mexico Register / Volume XXXI, Issue 3 / February 11,
2020
This
is an amendment to 11.21.1 NMAC, Sections 11, 12, 15, 16, 18, 22, 23 and 33
effective 2/11/2020.
Statute
citations throughout the rule have been corrected to conform with
legislative styles.
11.21.1.11 REPRESENTATION OF A PARTY: A party
may represent his, her, or itself, or be represented by counsel or other
representative. Any representative of a
party [who is not an employee of the party ] shall file with the board a
signed notice of appearance, stating the name of the party; the title and
official number (if available) of the case in which the representative is
representing the party, and the
name, address and telephone number of the representative. The filing of a pleading containing the above
information is sufficient to fulfill this requirement.
[11.21.1.11
NMAC - N, 3/15/2004; A, 2/11/2020]
11.21.1.12 EX PARTE COMMUNICATIONS: Except
as otherwise provided in this rule, no party to a proceeding pending [representation,
prohibited practices, or fact finding proceeding] before this board or
any of its agents shall communicate, or attempt to communicate, with a
hearing examiner assigned to the case, with the director, or with a board
member, concerning any issue in the case, without, at the same time,
transmitting the same communication to all other parties to the
proceeding. It shall not be a violation
of this rule to communicate concerning the status of a case, or to communicate
concerning such procedural matters as the location or time of a hearing, the
date on which documents are due, or the method of filing. It shall not be a violation of this rule for
a party to communicate with the director during the investigatory phase of a [representation,
prohibited practices, or impasse resolution] proceeding. It shall not be a violation of this rule for
a party to communicate with anyone concerning any rulemaking proceeding of the
board, or to communicate with the director, a mediator, or board member at the
director’s, mediator’s, or board member’s
request.
[11.21.1.12
NMAC - N, 3/15/2004; A, 2/11/2020]
11.21.1.15 RECORDS OF PROCEEDINGS: All meetings of the board (whether general, special or
emergency) and all rulemaking, unit determination, and prohibited practice
hearings before the board or a hearing examiner of the board shall be audio-
recorded, or, upon order of the board may be transcribed, except that board
meetings or portions thereof lawfully closed shall not be recorded or
transcribed, unless so directed by the board.
Following the board’s approval of the minutes of a meeting of the board,
the minutes shall become the sole official record of the meeting, and the audio
[tape] recording of the meeting may be erased. The director shall keep the audio [tapes]
recordings of the rulemaking, unit determination, and prohibited
practices hearings for a period of at least one year following the close of the
proceeding in which the hearing is held, or one year following the close of the
last judicial or board proceeding (including any appeal or request for review)
related to the case in which the hearing is held, whichever is later, or such
longer period as may be required by law.
No recording shall be made of any mediation proceeding, settlement
discussion, or alternative dispute resolution effort except by agreement of all
parties and participating officials. The
board’s recording or transcript shall be the only official record of a hearing.
[11.21.1.15
NMAC - N, 3/15/2004; A, 2/11/2020]
11.21.1.16 NOTICE OF HEARING:
A. After
the appropriate notice or petition is filed in a representation, prohibited
practices or impasse resolution case, the director shall hold a status and
scheduling conference with the parties to determine the issues; establish a
schedule for discovery, including the issuance of subpoenas, and pretrial
motions; and set a hearing date.
B. Upon
setting a rulemaking hearing, the director or the board shall cause notice of
hearing to be issued setting forth the nature of the rulemaking proceeding, the
time and place of the hearing, the manner in which interested persons may
present their views, and the manner in which interested persons may obtain
copies of proposed rules. Notices of
rulemaking hearings shall be sent by regular mail to all persons who have made
requests for such notice, and shall be published in at least one newspaper of
general circulation in New Mexico at least 30 days prior to commencement of the
hearing.
C. Upon
setting a hearing or conference before the director or designee or before the
board in any proceeding, the director or the board shall cause notice of
hearing to be issued to all parties of record setting forth the time and place
of the hearing or conference. A party to a representation, prohibited
practices or impasse resolution case in which a hearing or conference is
scheduled may request postponement of the hearing or conference by
filing a written request with the director, and serving the request upon all
other parties, at least five days before commencement of the hearing or
conference. The requesting party
shall state the specific reasons in support thereof. Upon good cause shown, the director shall
grant a postponement to a date no more than 20 days after the previously set
date. Only in extraordinary circumstances
may the director grant a further postponement, or a postponement to a date more
than 20 days after the previously set date, or a postponement with less than
five days' notice.
[11.21.1.16
NMAC - N, 3/15/2004; A, 2/28/2005; A, 2/11/2020]
11.21.1.18 MISCONDUCT: As
part of the board’s statutory duty under Section 2 of the Act to ensure the
orderly functioning of the state and its political subdivisions; and as part of
its power to hold hearings and enforce the act by the imposition of appropriate
administrative remedies pursuant to Section 9 of the Act, [The] the hearing examiner or body conducting
a hearing or official [conducting any other proceeding,] performing
duties under the act may exclude or expel from [the] any
hearing or proceeding, any person, whether or not a party, who engages in
violent, threatening, disruptive, abusive or unduly disrespectful
behavior. An exercise of the board’s
power to control its proceedings under this rule may include prohibiting a
representative from appearing before the board or one of its hearing examiners
for a period of time designated by the board, reprimanding, suspending, or
recommending referral for other disciplinary action. In the event of such exclusion or expulsion [of
a person for misconduct,] the hearing examiner, body or official shall
explain on the record the reasons for the exclusion or expulsion and may either
proceed in the absence of the excluded person or recess such proceeding and
continue at another time, as may be appropriate. An exercise of this power by an agent of
the board is subject to review by the board.
[11.21.1.18
NMAC - N, 3/15/2004; A, 2/11/2020]
11.21.1.22 BURDEN OF PROOF:
A. Except in unit clarification
proceedings, no party shall have the burden of proof in a representation [or fact finding] proceeding. Rather, the director in the investigatory
phase or the hearing examiner shall have the responsibility of developing a
fully sufficient record for a determination to be made and may request any
party to present evidence or arguments in any order. In a unit clarification proceeding, a party
seeking any change in an existing appropriate unit, or in the description of
such a unit, shall have the burden of proof and the burden of going forward
with the evidence.
B. In a prohibited practices
proceeding, the complaining party has the burden of proof and the burden of
going forward with the evidence.
[11.21.1.22
NMAC - N, 3/15/2004; A, 2/11/2020]
11.21.1.23 MOTIONS AND RESPONSES TO
MOTIONS: All motions and responses to motions, except those made at a hearing,
shall be in writing and shall be served simultaneously upon all parties to the
proceeding. All written motions shall be
filed and served on all parties pursuant to the scheduling order. Motions and responses made at hearings may be
made orally. If a party decides to file
a response to a written motion, the response shall be filed and simultaneously
served pursuant to the scheduling order or, if no deadline is set forth in
the scheduling order or such has yet to be issued, within 10 days.
[11.21.1.23
NMAC - N, 3/15/2004; A, 2/11/2020]
11.21.1.33 CHAIRPERSON SUCCESSION:
A. From among the three members appointed to the public employee labor
relations board pursuant to Section 10-7E-8 NMSA 1978,
the board shall appoint a chair to serve as the primary point of contact for
the board’s staff, to conduct the regular and special meetings of the board in
a manner consistent with parliamentary procedure. In like manner the board shall appoint a vice-chair
to serve in the capacity of chair in its absence or inability to serve and to
provide for automatic succession when the term of the chair is up.
B. The chair and the vice-chair shall serve in those capacities for a
period of one year. Upon completion of
the chair’s one-year term, the vice-chair shall automatically become the chair
and assume the duties of that office.
The past chair shall resume regular duties as a member of the board and
the third board member, who has not served as vice-chair within the preceding
year, shall assume that role.
C. Initial appointments under this rule shall be by seniority based on
the board members’ appointment letters.
In the event of a tie, the chair shall be determined from between the
two most senior members either by acclamation or by a coin toss supervised by
the board’s director.
[11.21.1.33 NMAC –
N, 2/11/2020]